New York state’s mandated school closures due to COVID-19 have resulted in a number of questions related to special education. One such question relates to conducting special education evaluations. Under the regulations, initial special education evaluations must be completed within 60 calendar days of receiving parent consent.
Most evaluations, however, require face-to-face testing that is not feasible during school closure. According to March 16, 2020 guidance from the U.S. Department of Education’s Office of Civil Rights (“OCR”), evaluations that require face-to-face testing during school closure “would need to be delayed until school reopens.” OCR’s guidance caused some confusion because it did not expressly extend the evaluation timelines. On April 27, 2020, the New York State Education Department (“NYSED”) provided some clarifying guidance on conducting evaluations and other issues affecting special education during school closure.
NYSED’s guidance provides that the 60-calendar-day timeline for initial evaluations has not been waived during school closure. NYSED, however, is encouraging school districts to enter into agreements with parents to extend the time to complete an initial evaluation if such evaluation requires face-to-face testing. School districts should be sure to document any agreements to extend the timeline and the district’s efforts to communicate such extensions to parents. NYSED reminds school districts that such communications must be in the parents’ preferred language or mode of communication.
School districts should continue to determine on an individual student basis whether evaluations may be conducted remotely so they can comply with the 60-calendar-day evaluation timeline. These determinations should be made in consultation with the certified or licensed professional who will be conducting the evaluation to determine whether remote evaluations will yield valid and reliable results for the student. NYSED allows the required observation for initial evaluations to be conducted through a remote observation of a student receiving instruction in a temporary learning environment; however, the determination of whether to conduct a remote observation should also be made on an individual basis.
NYSED does not expressly address how to move forward when a parent does not agree to extend a timeline and the school district believes that a face-to-face evaluation is necessary. It can be reasonably inferred, however, that in these instances when the parent does not agree to extend the timeline, the Committee on Special Education (“CSE”) should make efforts to gather as much evaluative information as possible (e.g., records review, rating scales, interviews via telephone or online platforms, etc.) to complete the evaluation within 60 days of receipt of parental consent. It should be noted that the 60-calendar-day timeline only applies to the completion of the evaluation.
The requirement to convene the CSE to make an eligibility determination, and to develop and implement an IEP for eligible students, must typically be completed within 60 school days of receipt of parental consent. However, this requirement was recently amended so that days of school closure as ordered by the Governor will not count toward those 60 calendar days for implementing an IEP.
Regardless of the time frames for implementing a new IEP, CSEs that convene to make an initial eligibility determination during school closure in the absence of needed face-to-face testing data should strongly consider administering such testing when school reopens. This would require the CSE to reconvene after collecting the updated information to revisit the student’s eligibility determination and adjust the student’s IEP as appropriate.
Students who are found eligible for special education for the first time during school closure must continue to have an IEP developed that provides a free appropriate public education (“FAPE”). The CSE also has the option of creating contingency distance learning plans that identify the special education that will be provided during school closure per an agreement between the district and parent. Such contingency plans are not required.
NYSED’s guidance is not limited to initial referrals and evaluations. NYSED advises school districts to continue to conduct the required three-year reevaluations that may be due during school closure, although parents and districts may mutually agree to extend the timeline for conducting reevaluations. The regulations allow re-evaluations to be conducted by reviewing existing evaluation data as appropriate.
NYSED concludes by reminding school districts, BOCES, and NYSED-approved private schools of the requirement to continue to provide students with disabilities a free appropriate public education to the greatest extent possible during school closure. All instruction and services provided pursuant to a student’s IEP during school closure should be thoroughly documented, including any monitoring of student progress.
Federal and state guidance documents can be accessed at NYSED’s updated COVID-19 website at http://www.nysed.gov/coronavirus. We will continue to monitor and provide updates on any new federal and state guidance.
Visit our COVID-19 resource page for other information regarding the pandemic.
This alert does not purport to be a substitute for advice of counsel on specific matters.
Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.